STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The Carrier desired to have a material platform and storage bins erected in the Upholstery Shop, Washington, Indiana, for the storage of materials used therein. These structures were built by employes of the Car Department, consisting of Mechanics and a Welder. There is no dispute between the paries as to the amount of hours involved in completing this project, it being agreed that the Car Department Mechanics worked a total of one undred and twenty (120) hours and the Car Department Welder worked a total of twenty-six (26) hours. The aggregate man-hours consumed were one hundred and forty-six (146).
This platform and bins were constructed by using twelve (12) pieces of six (6) inch used boiler flues and posts anchored to the floor by welding one-half ( % ) inch by twelve (12) inch square boiler plates to the bottom of the posts and fastened with one-half () inch lag screws. The frame work was constructed by welding angle irons and "T" irons together. The project is twenty-eight (28) feet in length, nine (9) feet in width and is seven and one-half (7'%Z ) feet high.
Claim was filed in behalf of Maintenance of Way employes account Shop Craft employes performing this work and the Carrier, under date of
The Carrier submits that Rule 1 (c), the "Classification" rule, appearing in the Maintenance of Way Agreement is wholly inapplicable to support the claim. That rule deals in terms of "* * * the construction and maintenance of railroad structures, * * *."
There is at least tacit admission on the part of the organization that Rule 1(c) is without application to support the claim.
The Carrier submits that (b) 6 (a) of the Scope Rule is equally without application to support the claim. The case at hand does not relate to the performance of "repair" work of any kind. Moreover, the Carrier has demonstrated that (b) 6 (b) of the scope rule of the agreement specifically states that "This Agreement (the Maintenance of Way Agreement) does not apply to: * * * the following work when performed by other than B&B forces: * * * Maintaining and painting material bins and tanks within store rooms or oil houses."
The Carrier next refers this Division to Rule 138 of the Carmen's Special Rules appearing in an agreement between this Carrier and System Federation No. 30, Railway Employes' Department, A. F. of L., revised September 1, 1926 as reprinted May 1, 1940. That rule has been quoted in full hereinabove.
There is essential agreement between the parties to this dispute that the work made subject of complaint is in fact an operation belonging within the domain of the Car Department. To assign this work to Maintenance of Way forces would, in effect and in fact, be removing work from under the scope of one agreement and placing it under the scope of another agreement. Plainly, the work here, the subject of complaint, properly falls within an application of Rule 138 f the Carmen's Special Rules of the Shop Crafts' Agreement. The Carrier asserts that this Division has no authority to take any action that would, in fact, remove work from under the scope of that agreement.
For example, in Award No. 1272, this Division with Referee Hilliard, stated in part: "* * * with practical unanimity, the decisions of this Division have been to the effect that where work within the involved agreement remains to be done, as here, it is subject thereto, and must be performed by the class of employes to which the agreement applies, * * *."
The Carrier submits that the foregoing presentation conclusively demonstrates that the work, subject of complaint here, does not fall within the scope rule or within the application of any other rule in the Maintenance of Way working agreement.
In view of the above and all that is contained herein, the Carrier requests this Division to find this claim as being one without merit and to deny it accordingly.
OPINION OF BOARD: initially we must deal with point raised by Carrier in its ex parts submission, that
Organization's notice to this Division of its intent to file an ex parts submission in support of this dispute being dated June 24, 1955, it is well within the time limit set by the above quoted agreement. We hold the dispute is properly before this Division. Award 7959.
Carrier also raises the "due notice" issue. This was disposed of by this Division with the same referee here sitting in Award 8079, which we now hold applicable here. Carrier's objection is rejected for the reasons set forth in that award.
The parties are in agreement that a total of 146 manhours were required for the construction of a material platform and storage bins in Carrier's Upholstery Shop at Washington, Indiana. The work was performed by a Car Department Welder and Car Department Mechanics.
The Scope Rule of the applicable agreement provides that the Agreement's rules shall
Organization asserts that "positions and work of 'carpenter' class and 'welder' class are subject to the rules of the effective agreement and therefore they are so included within the Scope Rule."
Organization, therefore, claims "the fact is inescapable that the employes have agreed, under the present Scope Rule, that certain work may be performed by other than B and B Forces and among such work that could be so performed, was the maintenance and painting of material bins and tanks within store rooms or oil houses. The work herein involved * * * was that of constructing a material platform and material storage bins and not work as to maintaining the bins. Hence, once the bins have been constructed, and properly so by Maintenance of Way B&B and Welding employes, then the Carrier, with certain restrictions, would have the right to maintain such structures." (Emphasis theirs)
In its rebuttal to Organization's position, here set forth, Carrier "submits that this rule scarcely in and of itself is adequate to assign work of this nature to employes coming within the scope of the Maintenance of Way contract. By its very reference, this rule is negative in character. It is not a positive assertion that certain work automatically belongs to employes coming within the scope of the Maintenance of Way Agreement. * * * Carrier has established conclusively that in point of fact there is no other rule appearing in the Maintenance of Way Agreement that would assign the work in question to employes coming within the scope of that agreement. As the Carrier has already shown, the work that was done at Washington, Indiana, was the same kind of work that had always been done by Car Department employes."
If we are to accept Carrier's position at its face value, namely that "the work, subject of complaint here, does not fall within the scope rule or within the application of any other rule in the Maintenance of Way working agreement," then why did the parties here involved take the trouble of specifically excluding from the same agreement the maintenance and painting of material bins within storerooms?
The contracting parties explicitly excluded "maintenance and painting" -nothing else-of material bins within storerooms.
Nowhere in this record does Carrier claim that the structure here involved is not a "material bin."
We must and do, therefore, agree with argument on behalf of Organization here petitioning that it is "a cardinal rule of agreement and contract construction that where an exception is specifically and expressly set forth, no others may be implied."
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
In respect of the majority's election to follow Award 8079 in dealing with the "due notice" issue herein, the undersigned make the dissent to that Award a part of this dissent on that issue.
Award 8093 also is in error on the merits because it is based on erroneous assumptions, first, that the platform herein is a material bin, and second, that the platform and bins herein are a structure.
It was unnecessary for the Carrier to make such a claim in respect of the "platform" because nowhere in the record was it even alleged to be a "material bin". On the contray, the claim itself as well as the record distinguishes between the platform and the bins involved herein.
Furthermore, the platform and bins herein do not constitute a structure as contemplated by the Maintenance of Way Agreement. The term "structure" is defined by Webster as,-
Obviously, the platform and bins herein are not a structure as so defined. As a matter of fact, the record shows that they are not in any manner attached to the shop building in which they are located and consequently are not an integral part thereof.
Inasmuch as the Agreement contains no rule which includes the construction of such facilities, there was no requirement on the contracting parties to explicitly exclude "construction" thereof. Accordingly, such omission from the exception did not have the effect of incorporating such work in the Agreement and the majority herein erred in so holding.
Award 8093 also is in error because it disregards past practice. The Carrier stated at many places in the record that, in the past, such facilities have always been constructed by Carmen. The Employes did not refute these statements.